The ‘Woke’ threat to the rule of law: Part one

By Graham Hill MA (Hons) Ll.B (Hons)

Societies and cultures without the Rule of Law, or with a severely fractured one, have issues with corruption, lawlessness, and clan-like violence; arbitrary, relativistic and unpredictable legal systems; the serious loss of justice for the individual; and political issues in which there is little or no trust between governed and governors.

The Rule of Law has also suffered erosion from indifference, ignorance and ineptitude from within. But for some time the RoL has been under siege from without by Neo-Marxism and its derivative, cultural Marxism.  The nadir has been reached in the oppression of feelings.

Instances of the detaching or casting off of the RoL in favour of an ideological Neo-Marxist religion have featured in the media. 

Chris Cuomo, a CNN anchor, in defending ANTIFA violence in August 2018 could unabashedly state:

“Fighting hate is right.  And in a clash [physical violence] between hate and those who oppose it, those who oppose it are right…It is not about being right in the eyes of the law, but you also have to know what’s wrong and right and immoral, in a good and evil sense.” 

This is akin to a religious fiat for violence; violence is given the ‘Green Light’ if your relativist group or tribal narrative defines a term like ‘hate’ and says that it is wrong.  Firstly, this is an indication of a loss of a socially accepted standard.   Secondly, what we are observing here is a tribal self-defining, James Comey-like “higher calling”, something normally the exclusive province of religion.   

The nomination hearings for the United States Supreme Court Justice Kavanagh displayed a similar detachment.  The hearing’s process is worthy of a book in itself.  Robin Pogrebin and Kate Kelly say they are writing one.  Saliently, the Judge’s detractors were ready to cut loose due process, fairness, the presumption of innocence, equality before the law, and the principles of the law of evidence. Emily Yoffe put the issue well in an article in the Atlantic (3 October 2018) when she said:

But when a woman, in telling her story, makes an allegation [of sexual assault or rape] against a specific man, a different set of obligations kick in.

Even as we must treat accusers with seriousness and dignity, we must hear out the accused fairly and respectfully, and recognise the potential lifetime consequences that such an allegation can bring.  If believing the women is the beginning and the end of the search for truth, then we have left the realm of justice for religion”

In mid-May of this year, a further assault on the RoL was directed at Harvard Law Professor Ronald S Sullivan, who is African-American and director of the Harvard Criminal Justice Institute.  He and his wife were also the first African-Americans to become Harvard Deans of Faculty.  He has come under assault by students, having been asked to be part of  Hollywood’s Harvey Weinstein’s legal team.  This was a role outside of his Harvard duties.  Joanna Williams in Spiked had this to say:

“Unusually, Sullivan’s ‘trauma-inducing’ sins against the sensibilities of undergraduates did not occur in the lecture theatre or indeed anywhere on campus. He neither misgendered students nor told them to sort out their own choice of Halloween costume. No, his crime has simply been to do his job.

Sullivan practices law; the knowledge and experience he gains from being at the forefront of his profession are passed on to students fortunate enough to be studying at Harvard’s elite law school. Over the course of an impressive career, he has advised Barack Obama, represented the family of Michael Brown in their suit against the city of Ferguson, Missouri, and overturned more than 6,000 wrongful convictions. Only it is the very business of the law, the need to defend people accused of crimes, the need to assume defendants are innocent until proven guilty, that has proved too much for students to stomach.

…The public denunciation of Weinstein ignited the #MeToo movement. For some of Harvard’s students – and staff – Sullivan’s decision to act in defence of Weinstein is not a legal duty and a professional responsibility, but a moral outrage that needs to be stopped. They have started petitions, held demonstrations and conducted rallies calling for his dismissal”

(Spiked, 14 May 2019)

The principle involved is a defendant’s right to have legal counsel of his or her choosing. In New Zealand legal counsel is acting for Brenton Tarrant. So too was Professor Sullivan, acting for a defendant by assisting his legal team.  Criminal law can be difficult and the rules of evidence need to be properly managed. He has neither broken the law nor acted in a reprehensible manner towards students.

The professor could not be removed from his Law Faculty job, so his role as a Faculty Dean was put in issue. The professor and his wife (the collateral damage) were subsequently sacked as Faculty Deans of Winthrop House, a hostel for undergraduates, by the university’s Dean, who had capitulated to students’ purported trauma and mental health risk, induced by Prof Sullivan’s presence.

To be continued…